Act of March 2, 1819—January 1, 1820. R. C. ch. 71. goods and chattels of the debtor, or party against whom such judgment shall be rendered; to be executed and returned as other writs of fieri facias are by law directed to be executed and returned;(1) but no writ of capias ad satisfaciendum shall be granted by any justice of the peace. 1738, c. 9, § 3, 5 Stat. Larg. 37. Provided however, That no justice of the peace shall take cognizance of any attachment where the sum demanded shall exceed ten dollars. Dec. 23, 1806-June 1, 1807, c. 88, ed. 1808; see Jan. 16, 1801, c. 271, R. C.; 1792, c. 67, R. C.; see act March 1642-3, act 55, 1 Stat. Larg. 273; March 1657-8, act 7, Ibid. 435; March 1661-2, act 35, 2 Stat. Larg. 72; 1748, c. 7, 5 Stat. Larg. 491. 8. § 21. The cause of action shall be stated in every warrant issued by a justice, requiring any person to appear before him, or some other justice, to answer in any suit for debt, detinue or trover;(a) and all such warrants shall be made returnable on a certain day, not exceeding thirty days from the date thereof. Ibid. [Hereafter all warrants in civil cases shall be made returnable to some place specified in the warrant, within the constable's district wherein the defendant resides: Provided however, That any justice of the peace may, for good cause shewn, verified by the oath of the plaintiff, his agent or attorney, direct it to be returned to any place within the county. Act of April 6, 1839, Sess. Acts, ch. 67, p. 43.] Act of March 2-April 1, 1821, ch. 32. 9. § 2. When any justice of the peace shall render judgment on any warrant for the recovery of money or other thing, it shall be the duty of such justice to enter in a book to be kept for that purpose, the said judgment, with costs adjudged to the plaintiff, and the date on which such judgment was rendered; and also the dates of all executions awarded by him on such judgments, and the times at which they are returnable, and to whom delivered; a copy of which, attested by the said justice, shall be evidence in all cases when a prosecution is had against the constable who received the same, for failing to make due return thereof, or for failing to pay over any money or tobacco which he may have received thereon, to the person or persons entitled to receive the same. 10. § 3. It shall be the duty of the respective county and corporation courts of this commonwealth, annually, in the months of June or July, to cause to be levied on the tithables in their respective counties and corporations, a sum sufficient to purchase for each of the acting magistrates thereof, who may apply for the same previous to such assessment, one blank book, containing at least two hundred pages; and the said courts shall cause the books aforesaid Constables may demand indemnifying bonds. Act Feb. 4th, 1831. See ante, p. 379, 380. (a) In civil matters a justice of the peace at common law, has no jurisdiction. In these matters his jurisdiction is wholly statutory and of the most limited character. Hence the necessity of strictness &c. in proceedings. See Cleveland v. Rogers, 6 Wend. 438; Savacool v. Boughton, 5 Wend. 170, and authorities cited. In issuing process at the request of the party, a justice acts ministerially, and is justified in issuing any process within his jurisdiction which is demanded by a party, provided the justice acts in good faith. See Rogers v. Mulliner et al. 6 Wend. 597, 603, and see Tompkins v. Sands, 8 Wend. 462. It would seem from this section and the preceding section that causes of action, not capable of legal enforcement by action of debt, detinue or trover, are not cognizable by a justice of the peace. But see act Jan'y 16, 1801. See Miller v. Marshall, 1 Virg. Cas. 158, in which a prohibition was awarded to a justice of the peace assuming to hold plea of an account for quit rent, renewing deed to lord Fairfax and his heirs and assigns, warrant in name of grantor's assignee. Act of March 2-April 1, 1821, ch. 32. to be purchased and deposited with their respective clerks, to be by them distributed according to the provisions of this act. Act of March 2, 1819-January 1, 1820. R. C. ch. 71. 11. § 22. Executions shall be stayed on judgments given by a justice of the peace for any sum exceeding ten dollars, exclusive of costs and interest, forty days; the person requesting such stay giving such security as the justice rendering such judgment shall approve, for the payment thereof, with interest, until the same shall be satisfied. And unless such judgment shall be paid and satisfied within the period before mentioned, execution shall thereupon be granted by such justice, against the party and his security jointly; on which execution, no security shall be taken. Dec. 23, 1806-June 1, 1807, c. 88, ed. 1808. 12. § 28. Every justice of the peace shall have power to issue executions and subpoenas for witnesses, to be directed to the constable or other officer, of any county or corporation within this commonwealth, where the party or witness resides. 1792, c. 271, R. C. and lbid. 13. § 27. When the constable or other officer (4) to whom any execution shall hereafter be directed by a justice of the peace, shall not be able to find goods and chattels to satisfy the same, he shall make return thereof to the clerk of his county or corporation, who shall docket the same; and the party shall be entitled to such writ or writs of execution for the recovery of the amount due thereon, as if the judgment upon which such execution issued had been rendered in court. [It shall be lawful for justices of the peace, whenever any execution issued upon a judgment on a warrant shall be returned no effects, or shall have any other legal return, shewing that the same has not been satisfied, to issue another execution upon such judgment at any time within one year after the date of the judgment, and not afterwards; during which period it shall be lawful for any constable to return to the justice who issued the same, any execution which shall be wholly unsatisfied. And if any question about the legality of such execution shall arise, it shall be lawful for the court of the county or corporation in which the judgment may have been obtained, to hear and decide any motion to quash the said execution, in the same manner as if it had issued from the clerk's office thereof, provided ten days notice has been previously given to the adverse party. Act of March 6, 1840, Ses. Acts, c. 58, p. 50.] And the same proceedings shall be had upon executions to be issued by the clerks under this act, as upon executions founded upon judgments rendered by courts of law; and the clerks shall be entitled to the same fees for the services hereby required of them, to which they would have been entitled if such judgments had been rendered in court. Ibid. [Executions of capias ad satisfaciendum issued by virtue of this section from the hustings court of the city of Richmond, may be directed to the constables of the said city.(2) Feb. 18, 1820, c. 112.] [See tit. CONSTABLES, p. 156, No. 416.] 14. § 29. If any constable or other officer shall fail to make return of any execution to him to be directed under this act, on or before the return day thereof, (which shall, in no case, exceed sixty days from the date thereof,) it shall be lawful for any justice of the peace, ten days notice being given, upon (4) It is the duty of a constable to whom an execution is delivered, to search for property, before he returns the execution to the clerk's office. The constable has a reasonable time to make search, and if he acts in good faith, he will incur no responsibility in omitting to make the return, until such t Act of March 2, 1819-January 1, 1820. R. C. ch. 71. the motion of the party injured, to fine such constable or other officer in any sum not exceeding five per centum per month, upon the amount of such execution, counting from the return day thereof. Dec. 23, 1806-June 1, 1807, c. 88, ed. 1808. 15. § 31. If any constable or other officer, shall hereafter receive any money or tobacco, upon any execution hereafter to be directed by any justice of the peace, and shall not pay the same to the party or his agent entitled thereto, upon the return of such execution, the party or parties, his, her, or their executors or administrators, injured thereby, shall be entitled to the same remedy, by motion, for the sum so received, with interest and costs, against such constable or other officer, and his security or securities, his, her, or their executors and administrators, to which he would have been entitled against a sheriff, for money received on an execution issued upon the judgment of a court of law. And any justice of the peace of the county, the mayor, or any alderman of the corporation in the court of which the bond of such constable or other officer is, or shall be deposited, shall have power to hear such motion, and to render judgment thereon. Ibid. am. at rev. 1819. [See ante, p. 383, 384, No. 33.] [Hereafter, if any constable shall receive from any debtor the amount of any debt or claim which may have been entrusted to, or placed under the control of such constable, to warrant for, and which might have been recovered by warrant, every such constable and his securities shall be liable to the creditor or plaintiff for the amount so collected, in the same manner as he or they would be for money collected by him under execution; and in any proceeding against a constable for failing to pay money thus received, his receipt for the debt or claim, signed in his official character, shall be admitted by the court as prima facie evidence of the receipt of the money; provided six months shall have elapsed between its date and the commencement of the proceeding. And if any constable shall collect any sum of money from any debtor after the return day of the execution which may have issued therefor, every such constable and his securities, shall be liable to the creditor for the amount so collected, in the same manner as if the money had been made or collected before the return day of such execution: Provided, That nothing herein contained shall be so construed as to apply to any persons who have become securities of a constable before the passage of this act. Act of March 8, 1826, c. 19, Ses. Acts 18256, p. 21; Sup. R. C. c. 141, p. 201.] Act of March 6, 1840, ch. 58. 151. § 2. No new trial of any case arising upon a warrant, shall be granted by any justice of the peace, except by him who rendered the judgment, unless in case of the death, resignation, or removal of such justice, in which event any other magistrate may grant the same; nor in any case after the expiration of thirty days from the date thereof; nor unless the opposite party shall have had five days previous notice of the time and place of the application for such new trial. Act of March 19, 1839, Ses. Acts, ch. 68. 152. § 1. Hereafter, when any execution upon a judgment on a warrant, shall be levied upon property, which shall be claimed by any person, other than the debtor, it shall be lawful for such person to apply to any justice of the peace of the county or corporation in which the execution may be levied, for a summons both against the creditor and debtor in such execution, to shew cause why the said property should not be discharged from the execution; Act of March 19, 1839, Ses. Acts, ch. 68. and it shall be the duty of the justice to issue such summons, returnable not less than five days thereafter; and if an earlier day shall have been fixed for the sale of the property, he shall also make an order on the summons, requiring the postponement of the sale until after the return day aforesaid; and if, upon hearing the parties, or such of them as may attend, after being duly summoned, he shall adjudge that the property levied upon, belongs to the claimant thereof, and is not liable to the execution levied on the same, he shall make an order directing the officer to restore the said property to the possession of the person from whom it was taken, or to the said claimant, as to him shall seem just and proper, or otherwise to dismiss the summons: Provided however, That either party may, within five days thereafter, upon giving security, as in cases of appeal from judgments on warrants, take an appeal from whatever order may be so made, to the next term of the court of the county or corporation, whether monthly or quarterly, to be then tried in preference to other civil cases; and the court shall have power to try the right of property, without any interpleader, or other written pleadings, and for that purpose, shall have the same powers, and shall proceed in the same manner in all respects, as is required by law in cases of attachment, where the property attached is claimed by any other person, and the court shall give such judgment respecting the property, the expense of keeping it, and any injury done to it, as may be equitable among the parties: Provided, That when the property in controversy shall not be of the value of twenty dollars, no jury shall be impannelled, but the court shall decide upon the title, and its decision shall be final. Act of March 2, 1819-January 1, 1820. R. C. ch. 71. 16. § 23. If either party, in any suit hereafter to be brought before any justice of the peace, shall think himself, herself, or themselves grieved, where the debt, or subject of trover, or detinue, or damages, exclusive of interest, shall exceed ten dollars, (3) or the sum demanded on any penal statute shall exceed five dollars, such party,(5) within five days from the rendition of such judgment, may enter an appeal to the next monthly term of the county or corporation court, giving such security, as the justice rendering the judgment shall deem sufficient, for the payment thereof, and all costs and damages, in case the same shall be affirmed. Ibid. 17. 24. The verbal acknowledgment of any security required to be taken under this act, shall be sufficient, and the endorsement by the justice, of the name of such security upon the warrant, on which the judgment shall be rendered, shall be conclusive evidence of such acknowledgment. Ibid. 18. 26. Every justice of the peace, from whose decision an appeal is prayed, shall, on or before the day to which the same shall be returnable, transmit to the clerk the original warrant, with the judgment and the name of the security endorsed thereon; and the clerk shall docket the same, and be entitled to the same fees upon such appeals, as clerks of circuit courts are entitled to for similar services. Any person or persons, who shall be compelled to pay money under this act, as a security, his, her, or their executors and administrators, shall have the same remedy against the principal or prin (3) If the sum claimed be more than ten dollars, and judgment be rendered for less than ten dollars, can the defendant appeal? See Gordon et al. v. Ogden, 3 Peters's Rep. 33; Smith v. Honey, Ib. 469; Shirley v. Titus, 1 Sumner, 447. (5) If judgment be given against two or more, and one is dissatisfied and prays an appeal, and the other or others are content, what proceedings shall be had? See Hacket v. Herne, Carth. 7; Gallagher et al. v. Jackson et al. ex'rs of Jackson, 1 Serg. & Raw. 492; Fotterall v. Floyd, 6 Serg. & Raw. 315. Act of March 2, 1819-January 1, 1820. R. C. ch. 71. cipals, his, her, or their executors and administrators, by motion, for the amount so paid, with interest and costs thereon, as other securities are by law entitled to. Ibid. 19. § 25. Appeals granted under this act shall be tried in a summary way, without pleadings in writing, on the day to which such appeal shall be returnable, unless good cause be shewn by either party for a continuance; and the courts, in rendering judgments thereon, shall govern themselves by the principles of law and equity, and shall hear all the evidence produced by either party, whether the same were produced before the justice from whose judgment said appeal was prayed, or not.(b) And where judgment is affirmed, the same shall be entered for the amount of the original judgment, and the costs of appeal, together with damages after the rate of ten per centum per annum, upon the whole amount of the original judgment and costs, from the date thereof until payment; and such judgment shall be entered against the principal and his security jointly; and execution thereon shall issue accordingly and be endorsed, No security to be taken. And if the judgment of the justice shall be reversed, the appellant shall recover full costs. Ibid. 20. § 32. Every court within this commonwealth, on reversing any judgment of any justice of the peace, shall pronounce such final judgment, as, in their opinion, such justice ought to have rendered. (2) Ibid. 21. 33. When any person, who shall be summoned as a witness to attend before any justice of the peace, in any county or corporation within this commonwealth, to give evidence in any matter depending before such justice, shall fail to attend accordingly, not having a reasonable excuse for such failure, such (b) The appeal, as authorized by this section, seems to be analogous to an appeal in the civil law proceedings; according to which, the cause in the appellate court is heard de novo, as if no judgment had been pronounced in the lower court: and 'tis lawful to allege, in the appellate court, what has not before been alleged, and to prove what has not before been proved. See Clarke's Prac. tit. 54, Hall's ed. p. 102; 1 Browne's Civ. Law, 494-500; 2 Brow. 435436; Yeaton v. The U. S., 5 Cranch, 281, 3; Anon. 1 Gallison, 25. This provision, taken in connexion with that regulating costs on reversal, in whole or in part, of judgment for plaintiff below, seems to be defective, in this: that defendant may, intentionally, to vex the plaintiff, hold back his evidence, or set-off, with a view to bring it out on the appeal, or, having ascertained from the examination below, the pinching point, he may seek out new witnesses, &c. to answer his purpose, on the appeal. And see Edinburgh Rev. No. 104, (Jan'y 1831,) act x. p. 487. In a court of appeal, or for the correction of errors, the proper mode of putting the question, is, "shall this judgment (or decree) be reversed?" And if a majority of the court does not vote for a reversal, the judgment or decree is of course affirmed. Bridge v. Johnson, 5 Wendell, 342; Etting v. The Bank of U. S. 11 Wheat. 59. For other powers and duties of justices of the peace-see the respective titles:and, as conservators of the peace, see Willes v. Bridger, 2 Barn. & Ald. 278, and Butt v. Conant, 1 Brod. & Bing. 548; in which the subject is fully considered. A justice of the peace, who takes a recognizance to keep the peace, has no authority to bind the party to appear before a superior court of law. So held by judges Stuart, Smith, Allen, Daniel, Semple and Field. Judges Brockenbrough, Parker and May, dissenting, being of opinion, that a justice of the peace may take a recognizance, in a case of this kind, conditioned for the appearance of the party, at either the county or the superior court. The Com'th v. B. Bartlett et al. gen'l court, Nov. T. 1829, 1 Leigh, 586. For mode of proceeding on a sci. fa. on a forfeited recognizance, see Rex v. Wiblin, 2 Car. & Payne, 10, 12 Com. L. R. 4. (2) Judgment of a justice of the peace, affirmed by a county court, for debt, principal, interest, damages and costs, not amounting to $33 33. Circuit court has no appellate jurisdiction to review such judgment. Hay's adm'r v. Pistor, 2 Leigh, 707. The county and corporation courts, being courts of record, the writ of certiorari does not lie to a judgment of a corporation court affirming a judgment of a single magistrate, (though his is not a court of record,) on a fine imposed by a penal law, or in a civil case: if there be error in the judgment of such court affirming the judgment of a single magistrate for a fine, the writ of error lies. Tankersley v. Lipscomb, 3 Leigh, 813. |